Wednesday, May 22, 2019

Judge Mehta's Subpoena Ruling is a Tour de Force: SCOTUS Can Undo It Only Through Partisan Hackery

by Michael C. Dorf
On Monday, US District Court Judge Amit Mehta issued a thorough and persuasive opinion rejecting the arguments by President Trump's personal lawyers for an order invalidating a congressional subpoena for financial records that was issued to an accounting firm that has worked for Trump and his businesses. The next stop for the litigation will be the US Court of Appeals for the DC Circuit and thence the Supreme Court. As I'll explain, Judge Mehta's opinion makes clear that the law clearly favors Congress (really the House) in this dispute. That does not guarantee that Trump will ultimately lose. However, Trump can only prevail in the SCOTUS if the conservative majority engage in hypocritical partisan hackery.

As I noted in an essay here late last month, the Trump legal team's argument rests on two extremely dubious claims: (1) Congress has no power to investigate with respect to issues that don't involve legislation; and (2) the subpoena to the accounting firm isn't relevant to any legislation. During arguments before Judge Mehta, Trump's lawyers added a third, possibly even more outlandish, claim: (3) investigations of past conduct by Trump and others are efforts at law enforcement, which is assigned by the Constitution's Article II to the executive branch, and thus off limits for Congress. Let's consider the issues in turn.

(1) As I explained in the essay linked above, Trump's lawyers' first argument rests entirely on taking some sloppy Supreme Court language entirely out of context. Neither the Supreme Court nor the DC Circuit has ever said that Congress may only conduct investigations that are relevant to possible legislation. What those courts have said--and what should be blindingly obvious from the face of the Constitution's Article I--is that Congress may only conduct investigations that are relevant to one of its constitutional powers, including but not limited to legislation.

Judge Mehta focused on the same two that Representative Cummings had identified in his memo accompanying the subpoena: the power to approve (or disapprove) the receipt of foreign Emoluments and the power to impeach the president. Trump's finances are relevant to the former insofar as they bear on the extent to which he is receiving financial benefits from foreign powers. They are relevant to the latter insofar as they bear on a host of possible misdeeds.

Judge Mehta explained that Congress need not open a formal impeachment inquiry in order for its impeachment power to serve as a basis for an investigation of a potential impeachment target. And that makes perfect sense. Requiring a formal impeachment investigation as a precondition for deciding whether to conduct an impeachment investigation would either be a Catch-22 or would lower the threshold at which Congress launches formal impeachment proceedings, to the detriment of the nation's other business.

(2) Even if Trump's lawyers had prevailed on point (1), they still would have lost, because, as Judge Mehta's opinion explains, the president's finances are relevant to potential legislation. In particular, he approvingly cites Chairman Cummings's invocation of the Ethics in Government Act of 1978, which obligates "all federal officials, including the President, to publicly disclose financial liabilities that could impact their decision-making." Whether the president or anyone else is complying with the Act is potentially relevant to whether Congress ought to strengthen or otherwise amend the Act. And of course, even absent the existing statute, Congress would have the power to demand the information sought here, because all that is needed is relevance to potential legislation.

Against all of that, Trump's lawyers are left to argue that Democrats in the House don't really want Trump's financial records in connection with potential legislation but simply as a means of harassing him. Yet even if so, Judge Mehta says, it is not for the courts to inquire into congressional motives. He quotes very broad language from the 1957 SCOTUS case of Watkins v. US. Here's the full quotation from the Supreme Court:

We have no doubt that there is no congressional power to expose for the sake of exposure. The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals. But a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served.

In other words, something very much like the traditional rational basis test applies: So long as a house or committee of Congress could seek information in connection with potential legislation (or in connection with some other valid congressional purpose), a court will not invalidate a congressional subpoena on the ground that one or more members of Congress sought the information for some illicit purpose.

That is and should remain a slam-dunk for Congress, unless and until the Supreme Court chooses to repudiate the Watkins test. But if it does, we will have an extreme incongruity, given the upholding of the Muslim travel ban in Trump v. Hawaii: The courts cannot take notice of the president's religious bias, even though he repeatedly stated it, but they can infer an illicit congressional motive to harass the president when a congressional committee subpoenas records that clearly bear on legitimate government business.

Indeed, that juxtaposition would be backwards, given that, under the First Amendment, religious discrimination ought to take a matter outside the domain of deference to government officials, whereas the president is not exactly a suspect class. On the contrary, as the Court said when then-former President Nixon resisted congressional oversight of his records, the president is "a legitimate class of one." The only principle that could explain a SCOTUS decision that repudiates the Watkins test in Trump's case is a principle that says Republicans win and Democrats lose.

(3) Judge Mehta displays great patience in addressing the preposterous argument that by inquiring into specific matters that could involve crimes, Congress has somehow overstepped the bounds of its legislative role and usurped the executive (and/or judicial) function. He notes that "congressionally-exposed criminal conduct by the President or a high-ranking Executive Branch official can lead to legislation," citing Watergate and Teapot Dome before it. As for the argument that Trump was a private citizen when the records subpoenaed were developed, Judge Mehta rightly explains that there is no rule forbidding congressional inquiry into actions by private individuals, so long as they could bear on potential legislation or other legitimate congressional business.

* * *

I hasten to add that congressional power to investigate can be abused. HUAC during the McCarthy era used investigations as a means of intimidating and punishing people for what should have been First Amendment-protected speech and association. Congressional committees can also tie up administration officials with hearings that aim to embarrass them or simply waste their time -- as Democrats complained during the Obama years and as Trump is complaining now. Were one writing on a clean slate, one might conclude that the courts should fashion and enforce limits that curb abusive congressional investigations.

However, the courts do not write on a clean slate. For better or worse, Judge Mehta is right in characterizing the current law as affording to Congress a very strong presumption of regularity. That presumption may well be justified on the ground that political checks are adequate to prevent abuse, or that to the extent they are not, judicial intervention would err too far in the direction of constraining Congress. In any event, even if one thought that the risk of abuse warranted more robust judicial oversight, the subpoena for Trump's financial records should fall on the allowable side of any plausible line.

If law and logic govern, Judge Mehta's ruling will be upheld. If Trump's feeble separation-of-powers objections nonetheless somehow prevail, that will say less about the lines of authority between Congress and the president than it will say about the integrity of the judiciary.

Following up on the first comment, one way to partially "undo" this is by delay.

The same Supreme Court that in the Travel Ban case trusted the legitimate purpose of Trump not finding one here would be hackery. But, slow-walking it, even potentially delaying it into the height of the 2020 election season (giving the skittish caucus in the Democrats caucus more reason to be hesitant), would be as well by result.

There is no argument here for the other side and delaying things for appeal is a stretch. It's only an opening salvo, but helpful. Standing alone, however, they are just words.

Trump has appealed to DC Cir and seeks a stay pending appeal. https://www.washingtonpost.com/local/legal-issues/trump-appeals-federal-judges-order-upholding-house-subpoena-for-his-accounting-firms-records/2019/05/21/614bb5e4-7bcf-11e9-8bb7-0fc796cf2ec0_story.html

Note that Judge Mehta declined to stay his order, so in theory the accounting firm has to comply already. The pace going forward will depend on whether the DC Cir (or SCOTUS) grants a stay pending appeal, which in turn will give us a clue about their view of the merits.

I'm fairly convinced and yet, as you recognize, the court is applying a very broad standard. Is it too late or improper for the court to impose some limit on what might only amount to fishing expeditions? For example, Congress conducting an investigation into whether a president ever violated a law before being elected. The Whitewater investigation, which the judge raises, is a good response to this objection (not to say the Clintons, or Trump, were innocent). Were there objections at the time that the Whitewater investigation exceeded congressional power? Were they then unconvincing?

The standard set out by the court doesn't require that the target be the president. Congress could similarly open an investigation of a private citizen who has expressed a desire to run for president. In the course of a presidential election, a chamber of Congress could engage in opposition research under the permissive standard of "legislation could be had." I think the hypothetical troubling, but maybe all this is properly left to the political branches and the People to fight out, for better or worse. And to confirm for your readers: the court/Congress outline additional more compelling purposes (as you discuss above) for at least much of the information they seek here.

The concern for abuse of the legislative process is valid but line-drawing does sound like something rightly left to the political process and norms crafting procedures that sets forth certain limits.

You take something like Whitewater. Where is the clear line there where the courts should second-guess Congress even having the right to investigate? Some investigations are going to be wrong. Investigations can seriously burden private citizens. But, blocking elected officials from investigating is tough medicine too. I'm sure people here will greatly disagree on what investigations was abusive. Oversight of private business has led to investigations as far back as the 19th Century at least.

Anyway, this is not a hard case. Doing for someone running for office is tricky. There is a guideline in place involving investigating someone running and prosecuting them. You can also have investigations that might raise First Amendment issues and so forth. The concern for personal privacy was even cited by Justice Douglas in Doe v. Bolton (abortion case) to show there is a constitutional right to privacy.

So, it is a concern to have. But, even there, this is a weak application.

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